Bonum Certa Men Certa

'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

Cloud on beach



Summary: With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. €§ 101 (Section 101); but courts would still see past such façade

THE EPO and USPTO both have a bad new habit that they spread to other patent offices, such as KIPO in Korea. They use or misuse buzzwords. They try to make things outside patent scope seem so innovative that somehow this supposed innovation defies the rules (scope). Sometimes that manages to impress or at least confuse examiners and judges.

"So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords."It's hard to patent software. So it's not hard to see why patent maximalists would pursue such tricks. As recently as Sunday Watchtroll published this rant about Section 101/Alice -- the basis (or legal framework) upon which most software patents become void. "This has prompted many to cast a grim prospect for the software patent industry," Babak Nouri (at Watchtroll) wrote less than a couple of days ago, as if the patents themselves are the industry...

"A Realistic Perspective on post-Alice Software Patent Eligibility" is the headline and here's a snide remark directed at the law itself: "Much of the havoc wrought in the software patent system by the landmark decision Alice v. CLS Bank International, 134 S. Ct. 2347 (2014) stems from the unworkable two-part patent eligibility test based on vaguely defined and nebulous Abstract idea and significantly more constructs. The High court’s reluctance or perhaps inability to precisely define these standards and the perceived lack of discernible consistency by the patent community in the way these standards have been applied in the compendious jumble of case law, has perpetuated a sense of uncertainty. This has prompted many to cast a grim prospect for the software patent industry."

Who said this so-called 'industry' (it's not even an industry) deserved to exist in the first place? Let coders write code. Most of them never dealt with lawyers and aren't interested in lawsuits. It's the lawsuits 'industry' looking to cause trouble.

A few days ago Elliot C. Cook and Jeffrey A Berkowitz (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) published "Successful Companies Don't Just Patent Everything—They Make And Follow A Strategy".

You can't patent everything anyway. Sooner or later, as in the US with its courts, you realise that the lion's share of your patents are fake, worthless, toothless. Or in their words: "In both of the above illustrations, the companies failed to develop and implement a patent strategy. Emerging companies should concentrate on building a patent monopoly covering the most commercially important aspects of their new technologies while making efficient use of their patent dollars and the precious time of their key inventors. In short, when companies formulate their business strategy, patents should play an integral role. Patenting too sparingly or recklessly is not strategic and is not a way to generate company value."

So even a law firm that promotes software patents quite actively admits these downsides. In some cases, as in this new example of Swisscom and ASSIA, companies just cross-license and move on (wireless for the most part in this particular case/agreement, not algorithms).

So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords. We already wrote dozens of articles to that effect and over the past week we saw several new examples.

Japanese blogger Satoshi Watanabe wrote about patent trolls or feeding a patent troll in Japan for blackmail purposes. “Patent utilization” is what he (or they) use as the newest euphemism (rather than enforcement, monetisation, assertion and so on). He also alludes to "artificial intelligence (AI)-based" at the end:

“Patent utilization” has been a buzz word in Japanese IP industry. There seems to be an increasing number of companies thinking that they should make effective use of patents that haven’t been used by themselves; i.e. monetize such patents by selling or licensing them to others. Actually, a client of ours has asked me what salable or licensable patents are like.

First of all, you may need to know when a patent transaction occurs.

[...]

It's hoped that artificial intelligence (AI)-based solution will be developed.


That last part refers to how patents are managed, but it's part of a recent (past year) trend. They keep bringing up "AI". Some so-called 'IP' lawyers admitted to me that they don't even really understand what it means, yet they keep using the term. It's like a fashion.

How about this new article (4 days old) that speaks of "machine learning-base [sic] anomaly detection" in relation to new Anodot patents? George Leopold wrote about these bogus software patents being granted in the US. It's incredibly hard to believe/imagine patent courts tolerating such abstract/mathematical methods being patented as a monopoly.

To quote from the article:

Anodot, which focuses on using machine learning techniques to spot anomalies in time-series data, announced a pair of U.S. patent awards this week covering its autonomous analytics framework.

The analytics vendor said Thursday (Oct. 11) it has been granted two U.S. patents for algorithms that allow users to apply machine learning-base anomaly detection. The algorithms are designed specifically to quickly identify the source of anomalies in large data sets, then perform root-cause analysis. The approach is promoted as faster than traditional business intelligence tools or dashboards.

[...]

Anodot was launched in 2014 when its co-founders realized there was an unmet need for fast and accurate time-series analysis.


Those are software patents. It's algorithms, but they dress it all up in innovation- and novelty-sounding terms. Why did the USPTO grant such software patents? How about this new application from Apple? A lot of press about it this past week (dozens of articles), as is typical for Apple. But Apple will never sue with this patent/s, so we won't see the courts lecturing Apple on why it's patent-ineligible. If it ever gets granted in the first place...

Well, the patent office got its money anyway... and Apple got puff pieces about how it's presumably combating spam.

In other 'news', this time from JD Supra (a press release), patent law firms (Sterne, Kessler, Goldstein & Fox P.L.L.C. in this case) still try to figure out how to get bogus patents on software and nature, even if courts will reject these. From The Current State of Patent-Eligible Subject Matter:

In the wake of the Supreme Court’s Mayo and Alice decisions, uncertainty has surrounded what inventions are patent eligible in the United States. In Mayo and Alice, the Supreme Court developed a two-step test to determine patent eligibility. Step one determines if the invention is directed to a law of nature, natural phenomenon, or abstract idea. If so, the second step determines if there is an inventive concept sufficient to ensure the patent amounts to significantly more than the ineligible concept itself.[i] While this test has led to uncertainty in what inventions remain patent eligible, post-Mayo/Alice case law has begun to shed light on what is patent eligible in the United States. The current state of patent eligibility in the technology areas most impacted by the Mayo/Alice two-step are outlined below.

[...]

Software and Business Method Claims

Software and business method patents have faced significant challenges since the Mayo/Alice decisions. Software claims, are not per se ineligible, however software claims that merely gather, analyze, and output data are patent ineligible.[xii] Software claims can be patent eligible when they are directed to an improvement in the way computers operate.[xiii] Additionally, claims which recite specific limitations to overcome deficits or problems in the prior art have been found patent eligible.[xiv] Based on these holdings, to be patent eligible software claims must recite specific steps to obtain a desired result rather than recite merely the result itself.[xv]


After Alice and In Re Bilski we can pretty much assume things have changed profoundly. Sure, the patent office might still grant such patents. But what matters a lot more is whether those will be enforceable in court at any point before their expiry. The culture of patent embargoes and patent maximalism needs to end at the patent office too in order to preserve any presumption of patent validity. The USPTO continues to assess its performance using the wrong yardstick, e.g. number of patents granted. Patent maximalists are meanwhile pushing the lunacy which is computer-generated patents (we put the following articles in our daily links last week). Here's what Law 360 and IAM are suggesting:



So what they're basically saying is, let a bunch of machines manage the patent system; as if that's going to make matters any better...

Published a few days ago in the The National Law Review and another publication was this article of Christina Sperry (Mintz) and the litigation industry; under "Subject Matter Eligibility Under 35 U.S.C. ۤ 101" they admit that "AI" patents are just bogus software patents but promote these fake patents anyway. To quote the relevant part:

Subject matter eligibility for patent under 35 U.S.C. ۤ 101 has been a particularly hot topic since the 2014 Supreme Court decision in Alice Corp. v. CLS Bank Int'l. Section 101 patent eligibility has particular relevance to AI and digital health since they often involve computers and/or data processing whose mere presence, reference, or implication in claims frequently give rise to subject matter eligibility questions during patent prosecution as well as during litigation after patent issuance.

The breadth and gravity of current ۤ 101 issues has been explored elsewhere and is beyond the scope of this article. In general, Alice and subsequent lower court decisions have made it more difficult to get patents issued with claims involving computers and/or data processing. It is therefore important to consider potential patent eligibility concerns under ۤ 101 during the patent application drafting process in order to preemptively address these concerns as much as possible before the application faces any challenges during prosecution or during litigation as an issued patent.


To be quite frank, the abundance and overuse of the term "AI" by patent lawyers is a cause for concern. The only more worrying thing is seeing administrators at the EPO and USPTO adopting the term as well; they use that as a sort of synonym for software patents and we're asked to believe that they grant such patents for the betterment of society or manage patents using "AI" (they just mean things like search and inferences) to expand human understanding rather than make staff redundant, only to be replaced by vastly inferior performance.

Recent Techrights' Posts

Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
 
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock